Employer Liability for Racist Graffiti – Discrimination in the Armed Forces

4 minutes reading time

Two former British soldiers have won a high-profile race discrimination claim in the Employment Tribunal against the Ministry of Defence (MOD).

Lance Corporal Nkululeko Zulu and Private Hani Gue claimed they suffered through a long-running campaign of racist abuse during their time in the army.

The men brought allegations of racial harassment and direct discrimination against the MOD going back years, including the fact that Nazi and Confederate flags had been hung in the barracks, that senior officers had used racist language against them, and that a colleague had posted photos on social media posing with Tommy Robinson, the founder of the English Defence League. Both soldiers claimed that after making internal complaints, senior officers attempted to hide what had happened and did not acknowledge their reasons for later leaving the army.

Whilst many of their allegations failed, Mr Gue and Mr Zulu were successful in claiming that they had suffered racial harassment in the form of offensive graffiti. A photo of Mr Gue and Mr Zulu in the barracks was defaced with swastikas and the words “fuck off”, whilst someone had also drawn a swastika and a Hitler moustache on a separate image of Mr Gue. Another photo of Mr Gue and Mr Zulu had been graffitied with the N-word.

In a harassment claim, an employee must show that there has been unwanted conduct related to a protected characteristic (in this case, race) which had the purpose or effect of violating an individual's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual.

In this case, the judged held that, “the conduct was unquestionably unwanted; the graffiti in question was of the most unpleasant nature, set out on Mr Gue’s personal photographs and was racially highly offensive”.

The judge added that, even though the identity of the perpetrator was unknown, “the carrying out of this act was so unpleasant that it can only have been done with the purpose of violating the claimants’ dignity and creating an intimidating, hostile, degrading, humiliating and offensive environment for them”.

Now that Mr Gue and Mr Zulu have succeeded in establishing their claim of harassment, the case will continue to consider what remedies should be awarded. The claimants have said they plan to seek compensation and recommendations from the tribunal that the MoD implement better equality and diversity training within the armed forces.

This case should serve as a warning to employers that harassment can take many forms. It could be verbal or written comments, violence, threats of violence or graffiti. It can also relate to a number of different protected characteristics in addition to race, such as disability, sex and age. It is important that employers deal with any discrimination issues, not only because of their legal obligations and to avoid legal claims, but also to help foster a positive work environment.

If you have any further questions about this case or the topic of discrimination please do not hesitate to contact our expert employment team on 0161 941 4000 or by email lawyers@myerson.co.uk.